R. v. WONG KIN FAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL
NO. 1109 OF 1995

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J U D G M E N T

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Duffy, J.:

1. This was an appeal against a conviction for assault occasioning actual bodily harm and a sentence of six months passed therefor.

2. The facts were that a taxi driver, the 1st Prosecution Witness stopped outside a Taiwanese Restaurant in Cheung Lok Street to pick up three passengers. One of the passengers, the appellant, was smoking a cigarette when he entered the taxi, and the taxi driver asked him not to smoke. According to the taxi driver, the appellant stared at him for some time and then hit him behind his left ear with medium force. Then the passenger who had been in the back seat got out of the taxi went to the driver's door, opened the door and began to assault the taxi driver. According to the taxi driver, so violent was the assault that his face was full of blood and his nose bone was fractured and there was blood coming from his teeth, two of which were loosened. The evidence was that while the other passenger was assaulting the taxi driver, the appellant stood by watching, but took no part.

3. The medical report produced by the prosecution described PW1 as having mild tenderness over the nose. X-rays of his skull and nose showed no fracture. In other words, there was no visible sign of any injury on the taxi driver when he was medically examined.

4. In his reasons for verdict, the learned Magistrate said this:

" In reaching my decision I had regard to all of the evidence as I had recorded in my minute of the proceedings. I accepted the evidence given by PW1. I was impressed in the way that he gave his evidence. He appeared to me to be frank and honest with the court."

Later on, he said this:

" Lastly the injuries sustained by PW1 are clearly set out in his evidence. He was subjected to a severe assault where he says that his face was full of blood, his nose bone was fractured and there was blood coming from his teeth, two incisors of which had been loosened. He, on his own evidence, had been hit 30 to 40 times.

My attention was drawn to the fact that the medical report shows a mild tenderness over the nose, and that x-rays of the skull and nose did not show any fracture. 'Actual bodily harm' is any really serious harm, and I am satisfied that that is what happened here. When PW1 said that his nasal bone was fractured, I was satisfied that he was not lying, nor trying to exaggerate what had happened. From the assault that had been occasioned to him, he had received serious bodily harm. It was fortunate nothing was revealed as fractured after x-ray."

5. With great respect to the learned Magistrate, the evidence given by the taxi driver was wholly inconsistent with the medical report which had been placed before the Court. It was therefore extremely difficult to understand how he could be satisfied that the taxi driver had told him the whole truth. There was, in my view, no evidence upon which he could come to the conclusion that there had been any actual bodily harm. At best, this was a common assault.

6. The matter, however, did not rest there. The learned Magistrate also said this in his findings:

" The appellant had hit PW1 in the manner he suggests and then PW1 was subjected to a severe beating by another who was not in court. From the circumstances of the clear, cogent and compelling evidence of PW1, there is no other inference other than it was a joint enterprise situation. The appellant had been with the group, a part of whom got into taxi. He had hit PW1 in the face. The other person from the group had almost immediately continued to assault PW1, and had asked him if he knew who he (the appellant) was, and thereupon hit him another ten odd times. After the assault the appellant, that other person and the rest of the group walked away, and PW1 a short time later identified to police the appellant and that other person, from the same group. Further whilst PW1 was being assaulted by that other person, the appellant had got out of the taxi and witnessed it all with the rest of the group.

The irresistible inferences to be drawn from the facts I have just outlined, led me to the conclusion that it was the appellant and the other person who was not in court, who had acted in concert and jointly with each other in carrying out this assault on PW1."

7. Again with great respect to the learned Magistrate, there was no evidence in this case from which he could draw the inference that when the other person started to attack the taxi driver, the appellant was acting in concert with him. All the appellant had done was to punch the taxi driver once behind the ear. The taxi driver then described a ferocious assault upon him by the other person with the appellant not joining in. There is no indication from the evidence that the appellant was a party to this further assault. The fact that he did nothing to prevent it, and simply stood and watched, does not make him a party to the second assault. It was certainly not the only reasonable inference to be drawn from the circumstances of the case that the appellant was jointly involved with the other man in assaulting the taxi driver. It was my view that the inference could equally well be drawn that the second assault was a separate matter from the first. His attack on the driver had involved only one blow, and that did not cause actual bodily harm. Then he desisted from further attack. Even if, therefore, the second assault had caused actual bodily harm, the appellant could not be guilty of that.

8. For the reasons which I have outlined above, I had to allow this appeal.